Adverse possession

The principle of adverse possession enables people who do not have a legal title to land or property to claim ownership of it when they have occupied the land without consent for a specified period of time.

Different regimes apply depending on whether the land is registered at the Land Registry. However, in all cases, to claim title to the land by adverse possession you must prove firstly that you have had factual possession of the land for the required period, secondly that you intended to possess the land during that period and thirdly, that your possession was without the owner’s consent.

To have factual possession of the land essentially means that you must have had a sufficient degree of exclusive physical control over the land and what is sufficient will depend upon the nature of the relevant land.

If the land was previously an open space, for example, fencing off that land is strong evidence of factual possession. However, fencing is not essential or conclusive, and it was held by the High Court earlier this year that it may be possible to acquire title by adverse possession of a river bed through the mooring of a boat.

The intention to possess the land must be an intention to possess on your own behalf and to the exclusion of all others, including the owner with the paper title to the land, and the possession must be without the owner’s consent, so you must not be in possession of the land under a lease, tenancy or licence or otherwise with the consent of the owner.

If the land is registered at the Land Registry then you must show 10 years’ adverse possession.

If the land is registered but the period of possession that you are relying upon in your application for title ended before 13 October 2003, or the land is not registered at the Land Registry, then you must show 12 years’ adverse possession.

The possession of the land for the specified time can be shown by successive occupiers of the land, so if you were to buy a house and the person selling has occupied land on the basis set out above, you do the same without any break in the period of occupation and the combined occupation has been for the requisite period, then a claim can be submitted if you have sufficient evidence to support your claim.

If you occupy land without having legal title to it, you may wish to make a claim for adverse possession, perhaps because you are selling a neighbouring property and wish to include the land that you have been occupying in that disposal.

You should consider starting to gather evidence of your occupation as soon as possible and ideally from when you first take occupation, in support of your claim.

An application for adverse possession has to be made to the Land Registry accompanied by a statement of truth or statutory declaration providing enough information to confirm that above requirements have been met, setting out the dates when the possession started and finished and the acts relied on as establishing the factual possession and intention to possess.

This can also be supported by additional evidence, for example statements of truth or statutory declarations from neighbours and other third parties can be useful as collaborative evidence.